Case No: C5/2010/0886 + 0886 (Z ) 
Neutral Citation Number: [2011] EWCA Civ 322
IN THE COURT OF APPEAL  ( CIVIL DIVISION )
ON APPEAL FROM ASYLUM AND IMMIGRATION TRIBUNAL 
[AIT No: IA/24298/2009]
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday 8th February 2011

Before:

PRESIDENT OF THE QUEEN’S BENCH DIVISION
(SIR ANTHONY MAY)
LORD JUSTICE RICHARDS
and
LORD JUSTICE HUGHES
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Between:

	MA ( Pakistan )   	
Appellant	
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Secretary of State for the Home Department 	

Respondent	

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Ms Melanie Plimmer  ( instructed by Messrs Paragon Law) appeared on behalf of the Appellant.

Mr Paul Greatorex   (instructed by Treasury Solicitors ) appeared on behalf of the Respondent.
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Judgment

Lord Justice Richards:

1.	The appellant is a citizen of Pakistan against whom the Secretary of State decided to make a deportation order by reason of criminal offending.  He appealed to the Asylum and Immigration Tribunal (as it then was) on the grounds that his deportation would be in breach of the right to respect for family life under Article 8 of the ECHR.  In a determination dated 2 October 2008 (“the first determination”) the panel, chaired by Immigration Judge Astle, allowed his appeal.  Reconsideration was ordered by the High Court.  At the first stage of reconsideration Senior Immigration Judge Spencer found that the first panel had made a material error of law.  At the second stage of reconsideration, in a determination dated 19 October 2009 (“the second determination”), a panel chaired by Immigration Judge Pirotta took the opposite view from the first panel and dismissed the appellant's appeal.

2.	In the further appeal to this court the first issue, for which Elias LJ granted permission to appeal, is whether the Senior Immigration Judge was wrong to find a material error of law in the first determination and whether that determination should therefore have been allowed to stand.  If there was a  material error in the first determination then there is a further challenge to the second determination.  Elias LJ refused permission to appeal on the grounds directed at that determination but an application for permission on those grounds is, if necessary, renewed before us.

The first determination
3.	In the first determination the panel recorded that the appellant was born on 29 July 1972.  He arrived in the United Kingdom on 3 February 1986 at the age of 13 with his sister and mother, his father already being resident here. He had therefore been in this country for 22 years at the date of the determination.  The period is now 25 years.  

4.	The appellant's criminal record relates to possession of and dealing in drugs.  In January 1999 he was convicted at the magistrates’ court of possessing a class B drug and was fined £70.  In November 2002 he was convicted at the magistrates’ court on four counts of possessing a class A drug and was fined £100.  In September 2003 he was convicted at the Crown Court on four counts of possessing a class A drug with intent to supply and was sentenced to three years imprisonment.  In October 2005 he was convicted at the magistrates’ court of possessing a class A drug and was sentenced to an 18 month community order.  In March 2007 he was found to have been in breach of that order and the supervision requirement was extended by six months.  

5.	Finally, in December 2007, he was convicted of conspiracy to supply a class A drug and was sentenced to four years’ imprisonment.  This was the offence that triggered the decision to make a deportation order.  The panel summarised as follows the pre-sentence report before the court on that occasion: 

“In the pre-sentence report the writer acknowledged that the Appellant was aware of the possible physical and psychological harm to others who used drugs and was frank and honest about his offending behaviour, acknowledging that his wife, children and other family members who had lived with and supported him were victims.  He did not seek to minimise the seriousness of the offence and expressed remorse.  However he had an established pattern of behaviour and was assessed as having a medium risk of reconviction and of being a medium risk of harm to the public but it was acknowledged that during a previous drug rehabilitation order there was a fair level of compliance.  The report also refers to a lack of sustainable motivation to address his drug problem.”

6.	The panel also quoted part of the Recorder's sentencing remarks:

“‘I have considered carefully, because it seems to me an important issue, whether the commitment to an [rehabilitation] order could give me real confidence that it would produce the desired effect.  I see nothing in what I have read or heard about you that gives me such particular confidence and, accordingly, I am secure in my view that, for a second offence of this type, a further prison sentence is the only sentence that can be passed.’ She gave him credit for his plea of guilty.”

7.	The panel heard oral evidence from the appellant, his wife and his father.  The evidence was that the appellant's sister and parents were still resident in the United Kingdom, as were many of his extended family.  Many family members lived in the same street as he did.  The appellant married a cousin in January 1990.  She was born and brought up here and is a British citizen. The appellant and his wife have four daughters and a son whose ages at the date of the first determination were, respectively, 18, 15, 14, 10 and 7.  Important evidence concerning the appellant's relationship with his wife and children was summarised by the panel as follows:

“The Appellant and his wife separated in 2001.  At the hearing she said that she asked him to leave because she could no longer cope with his addiction and the effect it was having on their children seeing their father in the condition he was.  He went to live with his parents, just a few doors away and, although she did not maintain contact with him for some four years, the children continued to see him at their grandfather’s house.  In about 2005 his wife resumed communication with him.  She did not divorce him and says that she will have him back once he has demonstrated that he is ‘clean’.  She gave evidence that she would want to see this demonstrated upon his release but if he lived for say three or six months with his other family and remained free of drugs she would have him back.  In the statement he says that even when separated from his wife he would see the children everyday.  Since he has been in prison his family has not visited him at his request but he talks to the children regularly on the telephone.  He and his wife confirmed that English is the first language for the children.  They do understand some Urdu and Punjabi [but] cannot read or write it and they think in English.  His wife is in full-time employment as a teaching assistant and they doubt that she would be able to get a similar job in Pakistan.”

8.	The appellant also gave evidence that he had sought to address his drug addiction, that he had not used drugs for some 18 months and he had tested negative for drugs while in prison.  

9.	When it came to the section setting out their findings the panel first directed themselves by reference to a number of directly relevant authorities including N (Kenya) v SSHD [2004] EWCA Civ 1094, Üner v The Netherlands (2007) 45 EHRR 14 , Maslov vAustria [2009] INLR 47 and Beoku-Betts v SSHD  [2008] UKHL 39, [2009] AC 115.  

10.	The panel said at paragraph 23 that there could be no doubt that the offence of which the appellant was convicted was a serious one.  They accepted that his involvement in the supply of drugs was to support his own addiction and not for profit, but said that that was of limited consolation to those who were harmed by the effects of drug misuse.  Further, the most recent conviction followed on from an established pattern of abuse and criminality that started in 1999.  Nevertheless it was clear from the pre-sentence report that he had become aware that he was not the only victim of drugs; his family had also suffered and he was aware of the consequences to the community at large.  The panel also noted that he had pleaded guilty to the offences.

11.	Referring to the separation of some seven years between the appellant and his wife, the panel said that they were impressed by the wife's evidence and by her clear commitment to her family.  Without her determination the family would have fallen apart. She had been badly let down by the appellant but they believed that he was aware of this.  She had not divorced him and she had continued to assist in maintaining the relationship between the appellant and his children, which the panel accepted was strong.  She was prepared to take him back once she was satisfied that he had dealt with his drug addiction.

12.	The panel found, for reasons I need not set out, that it would be unreasonable to expect the wife and children to move to Pakistan with the appellant were he deported there.  They then referred to the fact that he had arrived in the United Kingdom at the age of 13 and had been resident here for some 22 years (as it then was).  He had spent the larger part of his life here.  They cited a passage from the judgment in Maslov to the effect that very serious reasons are required to justify the expulsion of a migrant who has lawfully spent all or the major part of his youth in the host country.  They said that the appellant arrived with little education.  Until his most recent time in detention, it appeared that there had not been any attempt to address this problem.  Nevertheless he had worked from time to time when not prevented from so doing by his drug habit and its consequences. He had an offer of work upon release.

13.	In their concluding paragraphs the panel then stated as follows: 

“28.  The sentencing judge was not satisfied that the Appellant had addressed his own problems in the past or had made a particular commitment to ridding himself of drugs.  We believe that he now has that motivation.  He can be in little doubt that if he is successful in this appeal, this will be his last chance of maintaining any semblance of family life.  He has seen the effect of his addiction on his family.  We are told that his children are depressed by what has happened.  It was evident at the hearing that his father is upset and ashamed by his son.  The Appellant has shown commitment to the drug-testing programme and knows that his lifestyle must change.  He sees his best hope as arising from a commitment to his family, work and religion.  It is noteworthy that he describes himself in his statement as an addict, thus acknowledging that his fight against drugs must be a continuing one.

29. Given the seriousness of the conviction in this case we have not found it to be an easy decision but we have reached the conclusion that, bearing in mind the age at which the Appellant arrived in the United Kingdom, his educational difficulties, the fact that he has spent the large part of his life here and has done so within the immigration rules, the support offered to him by his wife, children, parents and extended family, his acknowledgement of his wrongdoing, his determination to correct his behaviour and in particular the likely effect on his family, we find that the decision to deport him constitutes a disproportionate interference with his rights under Article 8 and, the presumption under paragraph 364 not applying, by analogy we find that the decision is not in accordance with the Rules.”

The decision at first stage of reconsideration.
14.	The Secretary of State sought reconsideration on two grounds: first that there had been a misdirection in law, namely a failure to follow the guidelines in  R (Razgar) v SSHD [2004] UKHL 27 in finding that the appellant had established private and family life in the United Kingdom; secondly, a failure to give adequate reasons for findings on a material matter, a ground which related essentially to the adequacy of the findings in paragraph 29 of the first panel's determination, particular reference being made to the panel's reference to educational difficulties, the support offered by the appellant's wife and the assessment of the appellant's propensity for reform, that is to say the risk of re-offending.

15.	At the hearing of the first stage reconsideration Senior Immigration Judge Spencer held, and said that it had really been conceded by the Home Office Presenting Officer, that the first ground could not be sustained.  

16.	As for the second ground, attention focused on two contentions: the first was that the appellant's educational difficulties were irrelevant and that the panel had erred in taking them into account.  The Senior Immigration Judge appeared to regard that as an error but as one that might not have been material if it stood alone.  The second contention was that the panel had failed to deal with the risk of reoffending and in particular had failed to take into account the evidence in the pre-sentence report that the appellant was at a medium risk of reconviction and of causing harm to the public.  The Senior Immigration Judge accepted that contention and considered that the panel's failure was a material error of law.  On the basis of that finding he adjourned the second-stage reconsideration, in which the issue of whether the deportation of the appellant would constitute a disproportionate interference with his right to respect for private and family life and the corresponding right of immediate members of his family was to be determined afresh.

The appeal in respect of the decision at the first stage of reconsideration
17.	The issue raised by the first ground of appeal is whether the Senior Immigration Judge was right to take the view he did as to error in the first determination.  Ms Plimmer for the appellant has submitted in her written skeleton argument that there was no material legal error in the determination and that that determination should therefore have been allowed to stand.  In granting permission on this ground Elias LJ said that it seemed to him arguable that the first panel "reached a decision which, whilst perhaps compassionate, was open to them on their findings” and that Senior Immigration Judge Spencer was wrong to say that there was an error of law.  Ms Plimmer prays that observation in aid and submits that it is the correct analysis.  

18.	She submits that the Senior Immigration Judge was wrong to find that the first panel failed to deal with the risk of reoffending or to take into account the pre-sentence report.  The panel clearly took into account, she submits, the previous assessment of risk of reoffending but attached less weight to it in the light of their own reasoned finding that the appellant now had the motivation to rid himself of drugs.  It was implicit that the panel took the view that that motivation reduced the risk of reoffending and that the appellant was unlikely to reoffend.  This also explains why the panel did not deal expressly with the public interest in preventing a repetition of serious offending.  It did not consider such a repetition to be likely.

19.	In my judgment, that is indeed a correct analysis of the first panel's reasoning.  The suggestion that the panel did not take into account the assessment in the pre-sentence report seems to me to be untenable.  They summarised the report and quoted the Recorder's sentencing remarks, which were based in part on the report in paragraphs 8 and 9 which I have already set out.  They made further reference to these matters in their summary of the parties' submissions.  They said at the beginning of paragraph 28, which I have also set out, that the Recorder was not satisfied that the appellant had addressed his own problem in the past or had made a particular commitment to rid himself of drugs.  They went on, however, to find that the appellant did now have the motivation and commitment he had previously lacked, that is to rid himself of the drug addiction which lay behind his offending.  They gave reasons for this in paragraphs 28 and 29.  The whole tenor of those paragraphs is that, on the panel's assessment, things have moved on since the time when the appellant was sentenced and the risk of his re-offending is now relatively low.  It would certainly have been better to spell it out, but it seems to me that the message is clear enough.  

20.	I do not see any error of law in the way in which the panel dealt with this matter.  They had referred to relevant authorities and there is nothing to show that they misunderstood or failed to keep in mind the principles to be applied.  They took into account the written and oral evidence before them.  Their reasoning was on the thin side but adequate.   The conclusion reached was reasonably open to them on the evidence, even if, as Elias LJ suggested and the second determination (which it has been unnecessary for me to develop in detail) supports, the decision was a compassionate one and the appellant was fortunate that the panel came to the view that they did.

21.	Mr Greatorex, on behalf of the Secretary of State, has made vigorous submissions in an effort to persuade the court of the contrary view, that the first panel did err in law.  He submits that the reasons given in paragraph 29, the operative paragraph of the determination, are extremely brief and in themselves provide a warning that the panel had not dealt with their task properly.  In relation to the issue that I have just dealt with, the risk of reoffending and of harm to the public, he accepts that it is open as a matter of law to the tribunal to reach a different assessment from that in reports of the expert professionals such as the probation officer, but he submits that, bearing in mind that the tribunal's expertise lies in the field of immigration law rather than criminal law, the tribunal should be very slow to reach a different conclusion from that in earlier expert assessments and should differ from those assessments only for cogent reasons based on proper evidence.  He submits that in this case the panel lacked such cogent reasons.  They based themselves on the impression as to motivation that they had gained during the course of a short hearing and in particular in the course of the appellant's oral evidence.  That, he says, was an inadequate basis for making decisions about such matters.

22.	I readily accept that in relation to a matter of this kind the tribunal should give weight to previous expert assessments and ought not to depart from them without cogent reasons based upon proper evidence.  But, as I have said, I am satisfied that the panel in this case had the earlier assessments (both in the pre-sentence report and by the sentencing judge) well in mind, and in my view their finding that the appellant now had the motivation for commitment to rid himself of drugs was a sufficiently cogent reason for departure from the previous assessments and there was a proper evidential basis for that finding in the evidence of the appellant himself – evidence which, if not accepted by the Secretary of State, could be tested in cross-examination and was presumably so tested, to some extent at least, in the course of the hearing before the first panel.

23.	The first panel's assessment of the appellant's motivation and its implications for the risk of reoffending may be thought to be an optimistic one in relation to a person with a history of drug addiction, but it is not an irrational one, and Mr Greatorex made clear in his submissions that he was not advancing a case of irrationality.  The fact that the assessment was based on the impression made by the appellant does not render it unlawful.  That was merely the panel carrying out its proper task of making an assessment in the light of the evidence before them.  

24.	I therefore take the view that Senior Immigration Judge Spencer's finding of a material error in relation to the risk of re-offending was itself erroneous. In so far as the Senior Immigration Judge found an additional error, though not necessarily one regarded by him as material, in the first panel's reference to the appellant's educational difficulties, I have to say that I see no force in the point.  The panel referred in paragraph 27 to the fact that the appellant arrived in the United Kingdom with little education and there did not appear to have been any attempt to deal with the problem until his most recent time in detention.  They seem to have regarded this simply as a background disadvantage he had suffered.  Perhaps they were unwise to include specific reference to it in paragraph 29 in the list of factors they had borne in mind, but as a background factor it was not irrelevant, even if it merited little if any weight.  It cannot be said in my view that the reference to it constituted an error of law, let alone a material error.

25.	Mr Greatorex, in developing his arguments, has advanced points going beyond those specifically identified in Senior Immigration Judge Spencer's reasons.  He submits first that the risk of reoffending is just one aspect of the public interest that the tribunal was obliged to consider, two others being deterrence and the expression of society's revulsion at the offending conduct, and that the panel failed to refer to these, still less to take proper account of them.  He submits, secondly, that the panel failed to make adequate findings in relation to the appellant's family life such as the strength of his ties with the children, a point that he says is demonstrated or at least illustrated if one contrasts the findings in the first determination with detailed findings made in this area in the second determination.  He also asks how the relationship with the children can have been strong when the appellant was at all material times a drug addict and spent lengthy periods in prison.  The essence of his case is that the panel failed to undertake a proper balancing exercise, weighing these two factors – the public interest in deportation and the matters relevant to private life – against each other.

26.	In her skeleton argument Ms Plimmer objects to that line of argument as a matter of principle, on the basis that such matters were not the subject of the grounds for reconsideration or the order for reconsideration and were not themselves advanced at the first-stage reconsideration hearing.  She submits that it is simply too late to raise them for the first time now and she points to the absence of any respondent's notice raising them.  

27.	I have some sympathy with the point she makes.  The absence of a respondent's notice would not be critical, but it seems to me that the matters now put forward do go beyond the grounds relied on in support of the application for reconsideration and the order for reconsideration below, and I have some doubt as to whether it is open to Mr Greatorex to advance these points at this stage in circumstances where the Secretary of State did not argue them before Senior Immigration Judge Spencer and they cannot be said to have been obvious points in the Robinson sense (see Rv SSHD ex p. Robinson [1998] QB 929), such that the Senior Immigration Judge ought to have taken the points for himself.  But I do not need to decide that point or dispose of the  case on that basis, because in my judgment the matters advanced are in any event not ones upon which the Secretary of State can succeed in establishing an error of law in the first determination.

28.	In relation to the public interest in deterrence and the expression of society's revulsion, Mr Greatorex took us to passages in OH (Serbia) V SSHD  [2008] EWCA Civ 694, first in the judgment of Wilson LJ at paragraph 15 where the Lord Justice summarised propositions to be derived from N ( Kenya), and then in paragraph 16 where, in relation to the determination that was before the court on that occasion, he said that there was in it a reference to the seriousness of the offence and a finding that there was a low risk of re-offending, but there was no reference to the public interest and no reference to the significance of the deportation order as a deterrent or to its role as an expression of public revulsion or in the building of public confidence.  Mr Greatorex also referred to similar sentiments in the judgment of Pill LJ at paragraphs 30 to 31 of OH (Serbia).  He went so far as to submit that the decision in that case is binding on us to the extent that it should lead us necessarily to the conclusion that the first determination in the present case was erroneous in law.  

29.	I cannot accept that submission.  What was said in OH (Serbia) was founded on the earlier decision in N (Kenya) and, as I have said, the propositions to be derived from that earlier case are summarised at paragraph 15 of OH (Serbia).  In the present case it is clear from paragraph 23 of the first determination, where the panel referred in terms to N (Kenya), including the comments of May LJ on the nature of the public good and the public interest, that the panel had in mind the principles laid down in N (Kenya).  Unlike the tribunal whose determination was in issue in OH (Serbia), the panel in this case plainly had the seriousness of the offence at the forefront of their minds: see the references to that matter in paragraphs 23 and 29 of their decision.  In my judgment it was not necessary for them to deal expressly with the issues of deterrence and revulsion when setting out their findings. 

30.	Mr Greatorex also took us to OP (Jamaica) v SSHD [ 2008] EWCA Civ 440 at paragraph 28, where a comment was made that the tribunal in that case had sought to minimise the appellant's offence and had failed to give proper weight to the Secretary of State's policy in relation to deportation.  The same criticism cannot in my judgment be made of the first determination in this case, not least because, as I have already said, the tribunal referred in clear terms to the seriousness of the offence.

31.	As to the findings on family life, it seems to me that Mr Greatorex to some extent seeks to revive aspects of the criticisms contained in the first ground of the reconsideration, which according to Senior Immigration Judge Spencer the Home Office Presenting Officer had already conceded could not be sustained.  But, in any event, suffice it to say that in my view the first panel's findings as to the existence of a private and family life in this country sufficient to engage Article 8 were adequate and sufficiently reasoned, and I do not think it can be said that the tribunal gave more weight to private and family life than was reasonably open to them.  The particular findings they made, such as the strength of the ties between appellant and children, cannot be said to have been irrational on the basis of the evidence before them.  No assistance is to be gained by reference to the second determination, where findings were made on the basis of different evidence, including no doubt cross-examination of the appellant which had taken a somewhat different course from that in the hearing before the first panel.

Conclusion
32.	For all those reasons I reject Mr Greatorex's contention that the first determination was hopelessly inadequate, as he put it.  I reject the contention that it was erroneous in law, and, whatever concerns one may have about the conclusion reached by the first panel, that conclusion was not in my view vitiated by error of law.  Accordingly, I would allow this appeal and would reinstate the tribunal's first determination, which itself allowed the appellant's appeal against the decision to make a deportation order against him.

Lord Justice Hughes: 

33.	I agree. Whereas in OH (Serbia) the tribunal said nothing at all about the public interest factors of deterrence, revulsion and confidence, they were expressly addressed in this panel's determination.  The decision of the first panel may have been a fortunate one for the appellant but, perversity being realistically disclaimed, it was not flawed in law.

Sir Anthony May:  

34.	I agree that this appeal should be allowed for the reasons given by Richards LJ, whose account of the facts and circumstances of the appeal I gratefully adopt.  One main burden of Mr Greatorex's submissions is that paragraph 29 of the first determination by itself and alone contained the compressed reasons for the determination, which balanced a benevolent view of the appellant's family life in the circumstances with a perfunctory acknowledgment of the seriousness of his recent conviction and little else.  This had been preceded by an assessment which differed from that of the sentencing court of the risk of reoffending to the general effect that he was determined to change his drug addictive lifestyle.  The main submission is that this was inadequate in law because it failed to acknowledge and take into the balance the factors in deportation cases identified in N (Kenya) v SSHD  [2004] EWCA Civ 1094 to the effect that that risk of reoffending is not the only or most important factor and that the public interest including the need for deterrence and the need to express society's revulsion at the seriousness of the criminality must feature large in the balance.  See paragraphs 64 to 65 and 83 of the judgments in N (Kenya).  

35.	Contrary to Mr Greatorex's submission, the first tribunal plainly did take these matters into account.  See in particular paragraph 22 of the determination where there is a specific reference to the public interest with regard to N (Kenya) and where the matters there referred to plainly are to be regarded as part of the determination being made.  

36.	Nor am I persuaded that the reasoning should be regarded as inadequate because paragraph 29 is short and compressed.  The determination has to be read as a whole, and references elsewhere in the determination show that the panel did take into account such matters as the seriousness of the offending, the risk of re-offending, found in the pre-sentence report to have been a medium risk, and the factors of the appellant's family life, which they judged on the evidence to be substantial.

37.	The appeal will accordingly be allowed and the order of the first Immigration Judge will be reinstated. 

Order: Appeal allowed